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Criminal Reference No. 235 of 1962, decided on 15th January 1963.

S. 528‑Transfer of case to another Court without hearing of or notice to accused‑Held, improper, irregular and violative of natural justice‑Recording of reasons under S. 528 (5)‑Imperative.

Abdul Momen for Zahiruddin in support of the Reference.

Nemo for the Opposite‑Party.

This is a Reference by Mr. A. F. M. Ahsanuddin Chowdhury, Additional Sessions Judge, Dacca, recommending the setting aside of an order made by Mr. Mainuddin Chowdhury. Additional Deputy Commissioner, Dacca on 12‑5‑62, withdrawing the case to his file and transferring the same to Mr. A. K. L. Karim, Magis trate, 1st Class for disposal.

2. The case for the prosecution is that gold was being smug gled to East Pakistan from West Pakistan and illegally disposed of by the accused persons. On these allegations a First Informa tion Report was lodged at the Kotwaly Police station and a case was started against the accused persons who were charge‑sheeted under section 6 of Act I of 1956 on 13‑1‑62. When the case was pending before Mr. K. M. Rahman, Magistrate, 1st Class, for trial the prosecuting Inspector, Bureau of Anti‑Corruption, East Pakistan, submitted a petition in the Court of the Additional Deputy Commissioner on 9‑4‑62. The petition is as follows:---

"I beg to submit that this is one of the most important and sensational cases in which these accused persons were found in illegal possession of the huge quantity of fold.

I, therefore, pray that the case may kindly be taken to your bonour's file from the file Df Mr. K. M. Rahman, Magistrate, 1st Class, Dacca, and transferred to the file of the learned S. D. O. (south) for trial."

On receipt of the said petition, the learned Additional Deputy Commissioner made the following order:

"Call for records, Stay proceedings. To 16‑4‑62."

It appears from the record that this petition was disposed of on 12‑5‑62. On that date the learned Additional Deputy Commis sioner made the following order:

"Heard prosecution Inspector. Case is withdrawn to my file and transferred to Mr. A. K. L. Karim, Magistrate, 1st Class, for disposal. Send back records to him.

(Sd.) Mainuddin Chowdhury,

S. D. O. (S.), Dacca."

In these circumstances, the learned Additional Sessions Judge has based his recommendation on the ground that no notice was served on the accused persons, nor were they given a hearing before the impugned order was made. The learned Judge is also of opinion that no reasons having been recorded, the impugned order cannot be sustained in law, inasmuch as, it violates the provisions of subsection (5) of section 528 of the Code of Criminal Procedure.

3. The impugned order as quoted above, shows that the learn ed Additional Deputy Commissioner heard only the 'prosecution Inspector' and the learned Sessions Judge has stated in the letter of reference that no notice was served on the accused persons. Section 528 does not specifically require that a notice should be issued but in making an order contemplated under the said section, it is imperative that a notice should be given to a party having regard to the principles of natural justice. In the case of Jageshar v. Emperor (A I R 1929 All. 932), it was held that the powers contemplated under section 528 are very extensive but the wide discretion conferred on the Magistrate should be sparingly exercised. It should only be exercised where it is absolutely necessary to meet the demands of justice. Before an order of transfer is made propriety and justice demand that the notice of the application for transfer should be served upon the other party and an opportunity afforded to the latter to show cause why the application should not be granted. It was further held in that case that it is also necessary that the Magistrate should record his reasons. In the case of Dwarka Das v. Emperor (A I R 1931 Lah. 29), it was held that an order of transfer passed without notice on the opposite‑party and in his absence is illegal.

4. I have already indicated that an order of transfer made without notice and without hearing the other party, is improper and irregular and violative of the principles of the natural justice.

Moreover, in this case no reason for transferring the case has been given at all. The impugned order indicates nothing more than ready compliance with the wishes of the prosecuting inspector who is the only person who has been heard in this case, the impugned order has been made in complete disregard of require ment of law as laid down in subsection (5) of section 528 of the Code of Criminal Procedure which is as follows:

"A Magistrate making an order under this section shall record in writing his reasons for making the same."

The learned Additional Deputy Commissioner arbitrarily trans ferred the case from the file of one 1st Class Magistrate to another without recording any reason whatsoever in support of his action.

For the reasons stated above, the Reference is accepted, the impugned order is set aside and the case is sent back to Mr. K. M. Rahman, Magistrate 1st Class, to be disposed of in accordance with law.

S. Q./K. B. A. Reference accepted.

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